Gerald Nicholson v. Department of Homeland Security ( 2015 )

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD
GERALD NICHOLSON, DOCKET NUMBER
Appellant, NY-0752-14-0182-I-1
v.
DEPARTMENT OF HOMELAND DATE: February 3, 2015
SECURITY,
Agency.
THIS FINAL ORDER IS NO NPRECEDENTIAL *
Thomas Tierney, Esquire, Norwalk, California, for the appellant.
Christina Anne Cotter, Esquire, Washington, D.C., for the agency.
BEFORE
Susan Tsui Grundmann, Chairman
Anne M. Wagner, Vice Chairman
Mark A. Robbins, Member
FINAL ORDER
¶1 The appellant has filed a petition for review of the initial decision, which
sustained his indefinite suspension. Generally, we grant petitions such as this one
only when: the initial decision contains erroneous findings of material fact; the
initial decision is based on an erroneous interpretation of statute or regulation or
*
A nonprecedential order is one that the Board has determined does not add
sign ificantly to the body of MSPB case law. Parties may cite nonprecedential orders,
but such orders have no precedential value; the Board and administrative judges are not
required to follow or distinguish them in any future decisions. In contrast, a
precedential decision issued as an Opinion and Order has been identified by the Board
as significantly contributing to the Board’s case law. See 5 C.F.R. § 1201.117(c).
2
the erroneous application of the law to the facts of the case; the judge’s rulings
during either the course of the appeal or the initial decision were not consistent
with required procedures or involved an abuse of discretion, and the resulting
error affected the outcome of the case; or new and material evidence or legal
argument is available that, despite the petitioner’s due diligence, was not
available when the record closed. See Title 5 of the Code of Federal Regulations,
section 1201.115 (5 C.F.R. § 1201.115). After fully considering the filings in this
appeal, and based on the following points and authorities, we conclude that the
petitioner has not established any basis under section 1201.115 for granting the
petition for review. Therefore, we DENY the petition for review and AFFIRM
the initial decision, which is now the Board’s final decision. 5 C.F.R.
§ 1201.113(b).
¶2 On November 12, 2013, the agency proposed to indefinitely suspend the
appellant from his Immigration Enforcement Agent position following his arrest
and arraignment on criminal charges. Initial Appeal File (IAF), Tab 8 at 105-10.
On the same day, the agency also proposed to remove the appellant for conduct
unrelated to the criminal charge. Id. at 130-41. The agency sustained and
imposed the indefinite suspension effective November 28, 2013. IAF, Tab 1 at
7-12, Tab 8 at 92-93. The suspension proposal and decision letters informed the
appellant that the suspension would remain in effect until the later of the
following occurred: (1) there was a disposition of the criminal charges pending
against him; (2) there was sufficient evidence to return him to duty or support an
administrative action against him; or (3) he entered a plea of guilty. IAF, Tab 1
at 8, Tab 8 at 105. They also notified him that, “if investigation and
administrative determination so warrant, [his] removal from the Agency may be
proposed while [he is] in an indefinite suspension status.” IAF, Tab 1 at 8, Tab 8
at 105. On January 14, 2014, the appellant entered into a plea agreement with a
stipulation of no jail time and pleaded guilty to criminal contempt in the second
degree. IAF, Tab 17 at 41; see IAF, Tab 13 at 5. The appellant’s sentencing date
3
was scheduled for March 18, 2014. IAF, Tab 17 at 41. On February 7, 2014, the
agency rescinded the November 12, 2013 proposed removal letter and issued a
second proposed removal letter, which contained the same charges as the previous
removal letter and included a new specification related to the appellant’s criminal
conduct. IAF, Tab 19 at 12-23.
¶3 On February 13, 2014, the appellant filed an appeal and requested a hearing.
IAF, Tab 1 at 1-6. He asserted that the agency had failed to end the indefinite
suspension within a reasonable time after being notified of the resolution of the
pending criminal charges through the plea agreement. Id. at 4. He later withdrew
his request for a hearing. IAF, Tab 13 at 4, 6. Based on the written record, the
administrative judge issued an initial decision affirming the continuation of the
appellant’s indefinite suspension after the execution of the plea agreement. IAF,
Tab 22, Initial Decision (ID) at 1-2, 16.
¶4 The appellant has filed a petition for review of the initial decision. Petition
for Review (PFR) File, Tab 1. The agency has filed a response in opposition to
the appellant’s petition for review. PFR File, Tab 3.
¶5 In his petition for review, the appellant argues that the agency improperly
placed him on an indefinite suspension with the intent “to punish him and cripple
him financially” so that he would not be able to defend himself against the
agency’s pending removal action. PFR File, Tab 1 at 7. He further alleges that
the agency had already made the decision to remove him based on conduct
unrelated to the criminal charge because “[t]he investigation in the removal action
was already complete at the time the Agency concurrently issued the proposal to
indefinitely suspend the Appellant.” Id. Consequently, he requests the Board to
“overturn the indefinite suspension placed upon the Appellant in its entirety.” Id.
at 8.
¶6 The appellant does not provide any evidence for his contention that the
agency had an improper purpose for the indefinite suspension. See id. at 7.
Additionally, he fails to prove that the agency had already made the decision to
4
remove him based on grounds unrelated to the criminal charge at the time the
agency proposed the indefinite suspension. See id. The mere fact that the agency
proposed the appellant’s removal based on conduct unrelated to the criminal
charge, without further support, does not show that the agency had already
decided to remove the appellant. See Cruz v. Department of the Navy, 934 F.2d
1240, 1243 (Fed. Cir. 1991) (en banc) (finding that mere proposals to remove are
not appealable adverse actions in themselves and the Board has no jurisdiction
over them). Furthermore, an employee against whom an action is proposed is
entitled to certain procedures before an agency makes a decision, thereby
providing a possibility that the agency may not sustain the proposed action.
5 U.S.C. § 7513(b); 5 C.F.R. § 752.404. The appellant also does not explain how
the agency’s rescission of the first proposed removal and issuance of the second
proposal for removal “in which the underlying criminal charges constituted less
than four percent of the listed specifications” proves that the imposition of the
indefinite suspension was improper. PFR File, Tab 1 at 7; see Lemal v. U.S.
Postal Service, 79 M.S.P.R. 241, ¶ 4 (1998) (it is well-settled that it is not
unlawful or grounds for alleging error for an agency to refile the same charge
against an employee included in a previous, rescinded adverse action).
¶7 Finally, the appellant cites to several Board cases to support his claim that
the agency “has a history of abusing the indefinite suspension mechanism in order
to financially devastate Appellants they intend to remove in the near future.”
PFR File, Tab 1 at 7-8 (citing Camaj v. Department of Homeland Security,
119 M.S.P.R. 95 (2012); Hodge v. Department of Homeland Security,
114 M.S.P.R. 636 (2010); Gonzalez v. Department of Homeland Security,
114 M.S.P.R. 318 (2010)). These cases do not compel a different outcome
because they are factually distinguishable from the instant case. In Camaj,
119 M.S.P.R. 95, ¶¶ 12-13, the agency continued an indefinite suspension beyond
the resolution of the employee’s criminal charges in order to conduct an
investigation into separate noncriminal matters. In Hodge, 114 M.S.P.R. 636,
5
¶¶ 2, 7, and Gonzalez, 114 M.S.P.R. 318, ¶¶ 7, 13, 23, 28, the agency initiated
suspensions based on the existence of an open agency investigation into
allegations of off-duty misconduct. In contrast, the continuation of the
appellant’s suspension is entirely consistent with Engdahl v. Department of the
Navy, 900 F.2d 1572, 1578 (Fed. Cir. 1990). In Engdahl, our reviewing court
held that an indefinite suspension may be continued after an employee’s guilty
pleas where the agency provides advanced notice of possible administrative
action in the suspension proposal or decision notice and takes action within a
reasonable time of the conclusion of the criminal proceedings. Id. The appellant
failed to provide any reason to disturb the administrative judge’s finding that the
indefinite suspension continued for a reasonable time after the agency received a
copy of the plea agreement. See ID at 10-12.
¶8 To the extent that the appellant’s conclusory statement that the indefinite
suspension should be overturned “in its entirety” is a challenge to whether the
action was properly initiated, we decline to address it further. See PFR File,
Tab 1 at 8. The appellant raises this argument for the first time on review despite
clearly stating below his intention to contest only the continuation of the
indefinite suspension beyond the date he entered into a plea agreement, and not
the imposition of the suspension itself. IAF, Tab 13 at 4, Tab 16 at 1, Tab 18
at 4; see ID at 1 n.1, 9. Moreover, the appellant has not shown that this argument
is based on new and material evidence that was previously unavailable when the
record closed despite his due diligence. See 5 C.F.R. § 1201.115(d); see also
Banks v. Department of the Air Force, 4 M.S.P.R. 268, 271 (1980).
NOTICE TO THE APPELLANT REGARDING
YOUR FURTHER REVIEW RIGHTS
You have the right to request review of this final decision by the United
States Court of Appeals for the Federal Circuit. You must submit your request to
the court at the following address:
6
United States Court of Appeals
for the Federal Circuit
717 Madison Place, N.W.
Washington, DC 20439
The court must receive your request for review no later than 60 calendar
days after the date of this order. See 5 U.S.C. § 7703(b)(1)(A) (as rev. eff. Dec.
27, 2012). If you choose to file, be very careful to file on time. The court has
held that normally it does not have the authority to waive this statutory deadline
and that filings that do not comply with the deadline must be dismissed. See
Pinat v. Office of Personnel Management, 931 F.2d 1544 (Fed. Cir. 1991).
If you need further information about your right to appeal this decision to
court, you should refer to the federal law that gives you this right. It is found in
Title 5 of the United States Code, section 7703 (5 U.S.C. § 7703) (as rev. eff.
Dec. 27, 2012). You may read this law as well as other sections of the United
States Code, at our website, http://www.mspb.gov/appeals/uscode.htm.
Additional information is available at the court’s website,
www.cafc.uscourts.gov. Of particular relevance is the court’s “Guide for Pro Se
Petitioners and Appellants,” which is contained within the court’s Rules of
Practice, and Forms 5, 6, and 11.
If you are interested in securing pro bono representation for your court
appeal, you may visit our website at http://www.mspb.gov/probono for a list of
attorneys who have expressed interest in providing pro bono representation for
Merit Systems Protection Board appellants before the court. The Merit Systems
7
Protection Board neither endorses the services provided by any attorney nor
warrants that any attorney will accept representation in a given case.
FOR THE BOARD: ______________________________
William D. Spencer
Clerk of the Board
Washington, D.C.